Hunton Employment & Labor Perspectives

With more and more employees working off-site or from home, employers must be aware of the impact on courts’ interpretation of the FMLA’s eligibility requirements.

In June, the U.S. District Court for the Eastern District of Louisiana held in Donahoe-Bohne that the FMLA’s 50-employee threshold was met since the office to which a remote or telecommuting employee reported had at least 50 employees, even though the employee worked from home several states away.

An employee who works remotely (75 miles or more from the employer’s office) is covered under the FMLA if the office to which the employee reports and from which assignments are made has 50 or more employees working within 75 miles of its location. For employees with no fixed worksite, the “worksite” for purposes of determining whether 50 employees are employed within 75 miles, is the site to which they are assigned as their “home base,” from which their work is assigned, or to which they report.

Thus, employers may not hide behind a telecommuting employee’s “home office,” which may not be considered the work location for FMLA purposes. Rather, employers should consider the physical office location to which the telecommuting employee reports and from which he receives his work, even if that office is several states away. For example in Donahoe-Bohne, the employee worked from a home office in Louisiana, but reported to an office in Tampa, Florida.

Employers should keep in mind, however, that state discrimination statutes may impose different eligibility requirements. In Donahoe-Bohne, for example, the Louisiana court held that despite the employer having met the 50-employee threshold under the FMLA, the employee’s claim nevertheless failed under the Louisiana Employment Discrimination Law, because the state statute applies only to an employer with 20 or more employees within the state.